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From Health Law Daily, December 18, 2013

Prior public disclosures of information bars whistleblower’s action

By Melissa Skinner, JD

A qui tam action against Planned Parenthood of the Great Northwest, Inc. (Planned Parenthood) was dismissed by a Washington district court for lack of subject matter jurisdiction. The whistleblower brought the case against Planned Parenthood pursuant to the False Claims Act (FCA) but the court found that the public disclosure bar provision of the FCA prohibited the court from maintaining jurisdiction over the matter (Bloedow v Planned Parenthood of the Great Northwest, Inc., December 16, 2013, Pechman, M).

Background. The relator, Jonathan Bloedow, filed a qui tam complaint against Planned Parenthood alleging that from 2003 to 2009 Planned Parenthood fraudulently billed the Washington Medicaid program for emergency and oral contraceptives at prices above the required billing provisions. Specifically, Planned Parenthood was accused of billing at its usual and customary rates rather than the required actual acquisition cost rate or maximum allowable fee rate. The relator further claimed that Planned Parenthood also participated in: (1) fraudulent certification of compliance with Medicaid requirements; (2) conspiracy to conceal fraudulent claims; and (3) retention of the excess funds. Planned Parenthood moved to dismiss the complaint based on the public disclosure bar exception of the FCA. The parties disagreed as to whether the “whistle-blower friendly 2010 amendments to the public disclosure bar” applied to this matter.

Public disclosure bar. Until 2010, the public disclosure bar provided that courts shall not have jurisdiction over actions based on allegations or transaction which have been publically disclosed unless that action has been brought by the Attorney General or unless the individual bringing the action is an original source of the information. The 2010 amendments define public disclosures as only evidence disclosed by the federal government and news media and eliminate disclosures by state and local governments as well as expand on the definition of those who may be considered original sources.

Holding. First, the court found that since the claims brought against Planned Parenthood relate to its billing from 2003 to 2009, the public disclosure bar provisions prior to the 2010 amendments apply. Previous to this matter, a former employee brought a qui tam action against Planned Parenthood affiliates in California alleging essentially the same claims brought in this matter, Planned Parenthood’s overbilling of Medicaid. An Office of the Inspector General (OIG) report on the overbilling of Medicaid drugs was inspired by the California overbilling matter. The court found that these two occurrences met the standards of the pre-2010 amendment public disclosure bar. Because Planned Parenthood presented sufficient evidence of the existence of prior public disclosures of information that is substantially similar to the allegations contained in the relator’s complaint and because the relator was not an original source of the information under the previous version of the public disclosure bar, the court found it lacked jurisdiction and dismissed the case.

The case number is C11-1192 MJP

Attorneys: Todd M. Nelson (Nelson Law Group) for Jonathan Bloedow. Dolly Hansen (Spertus Landes & Umhofer LLP) for Planned Parenthood of the Great Northwest, Inc.

Companies: Planned Parenthood of the Great Northwest, Inc.

MainStory: TopStory CaseDecisions FCANews FraudNews MedicaidNews QuiTamNews WashingtonNews

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